Resilient Constitution

The past, the present and what the future holds for it.

RESPONDING to a question on what the Indian Constitution will look like in 2050, Solicitor General Gopal Subramanium told an online journal in 2008 that it would survive 600 more years as it is a very capable Constitution. According to him, it was one of the most well-crafted constitutions he has read, and it has lots of space and the dynamism to grow. The fundamental principles such as republicanism, secularism, equality, fraternity, and social, economic and political justice, which form its core values, will acquire different meanings at different points of time but will still be the governing values in any civilised country even in 2050, he said.

Historian Ramachandra Guha, seeking to answer the question Why India survives?, identifies the basic structure doctrine, holding of free and fair elections, and the prevalence of a secular ethos, among other factors, as the reasons for its tenacity, even though there are reasons to worry about the quality of India's democracy.

Indeed, as India enters the 62nd year of its Republic, the mixed feelings about the future of its Constitution are coloured by how it has evolved over the years. Books by legal scholars published during important stages of the Constitution's evolution discuss not only the interpretation of its provisions but also the expectations and misgivings it has given rise to.

Basu's works

Durga Das Basu's Commentary on the Constitution of India, published and revised several times since 1950, is an academic work that quenches the curiosity of inquisitive readers.

Basu began the preparation for the book on the day the Constituent Assembly had its first sitting. The manuscript of the first edition was complete within two months of the publication of the text of the Constitution, and the printing was over in the next six months. Comprising 800 pages in one volume, the book was published in November 1950. Basu wrote the first edition at a time when there were no pronouncements of the Supreme Court available to assist him in preparing his comments on the bulk of the Articles of the Constitution. It was thus an exploration into an untrodden region, as he put it.

The book has a long and interesting subtitle: A comparative treatise on the universal principle of justice and constitutional government with special reference to the organic instrument of India.

Basu, whose birth centenary was observed last year, was appointed to the Calcutta High Court in the category of eminent jurist in February 1963. Before this appointment, he had served the Law Commission of India as a full-time member. Having worked his way up from the subordinate judiciary rather than the bar, as is the usual practice, Basu secured for himself a reputation as an author of legal books of high standard and excellence. Basu retired from the Calcutta High Court in January 1971 but continued his research until the age of 87.

As he claimed with justified pride in a later edition, the analyses and deductions made in the book in 1950 were by and large accepted by the judiciary. There were also instances when the Supreme Court, having differed from Basu on a point, found reasons to veer round to his view. No other work on Indian constitutional law saw the light of day until Basu's Commentary had run into three editions in 1955.

Subsequent editions of the book were published in 1961, 1965, 1973, 1991 and 2007 (eighth edition). The last edition of the book, so far published in seven volumes (Volumes 6 and 7 published in 2010), has been thoroughly revised, updated and enlarged by a team of authors comprising Justices C.K. Thakker, former judge of the Supreme Court; S.S. Subbramani, former judge of the Madras High Court; T.S. Doabia, former judge of the Punjab and Haryana High Court; and B.P. Banerjee, former judge of the Calcutta High Court. Volumes 6 and 7 cover Articles 225 to 232 of the Constitution; Volume 6 is devoted to the discussion of just Articles 225 and 226. One can expect more volumes in the series if the remaining Articles of the Constitution, from 233 to 395, are also treated exhaustively.

In their preface to the book's current edition, Justices Y.V. Chandrachud and S.S. Subbramani expressed the belief that the Constitution, during its long journey, has weathered many a storm. When India's neighbours were still wallowing under political oppression and economic underdevelopment, India itself had done very well through its Constitution, they said. This optimism stands in contrast to Basu's own pessimism expressed in the early 1980s in his book Introduction to the Constitution of India.

During his lifetime, Basu was a votary of a revision of the Constitution rather than its piecemeal amendment. Though he believed in secularism, his writings betray an inexplicable distrust of minorities and the politics that caters to their welfare. This distrust made him caution in Introduction to the Constitution that India stood on the verge of a breakdown of the Constitution together with the institutions set up by it and that it was the political leaders who were leading the masses to this disaster. While Basu's pessimism might have mellowed over the years, his discussion of the Preamble and his arguments, in Shorter Constitution of India, against the insertion of the word secularism in it by the 42nd Amendment in 1976 show that his prejudice remained.

Basu's Shorter Constitution of India, first published in 1952, has seen 14 editions. The last one, brought out in 2010, has been thoroughly revised and updated by Justices A.R. Lakshmanan, former judge of the Supreme Court, and Bhagabati Prosad Banerjee, former judge of the Calcutta High Court; and V.R. Manohar, former Advocate General of Maharashtra.

Some readers might see in the successive editions of Basu's books proof of the Indian Constitution's resilience. On the contrary, the huge number of amendments to the Constitution may be enough to disbelieve claims about the durability of the original Constitution. But the fact remains that the amendments only underline the flexibility of the Constitution and explain its durability.

Tale of two nations

In The Endurance of National Constitutions, the authors examine the factors behind endurance of a constitution and argue, with the help of statistical and case-study evidence, that certain design and environmental factors can sustain constitutions even in the face of seemingly lethal crises. Design factors refer to the content and drafting process of the constitution and environmental factors imply international and national environments that host the constitution. Both these factors are outside the control of current constitutional actors. The authors identify three design factors flexibility, specificity, and inclusion that can facilitate constitutional endurance.

Flexibility is the ability of the constitution to adjust over time, adapt to changing circumstances, and thereby prevent its premature death. Specificity refers to both detail and scope and facilitates agreement as to the contents and meaning of the constitution. Inclusion refers to the involvement of important groups in society in the design and maintenance of the constitution. Broadly speaking, the more the groups with a stake in the constitution, the more likely it is to endure.

The authors of this book, as part of their Comparative Constitutions Project, have collected and compared the texts of nearly all national constitutions from 1789 onwards.

The authors found in India and Pakistan an interesting paired constitutional comparison; joined at birth, the two have provided contrasting environments for constitutional development. India's Constitution has succeeded in unifying a centrifugal nation against strong odds, making Pakistan's constitutional instability all the more stark. Pakistan's Constitutions seem to die with some frequency, while India's Constitution has been bent but not broken, they said.

According to them, the tale of these two entwined nations highlights the central importance of inclusion: India's constitution-making process was public, inclusive, and supported by most segments of the population, whereas Pakistan's founding moment was not embodied in an effective Constitution, and its elites never sought to expand public involvement in constitution-making or governance. Pakistani and Indian constitutional documents are quite similar as far as flexibility and specificity are concerned, they found. India's Constitution is more participatory and more highly articulated than those in Pakistan's history, both with regard to the formal text and with regard to interpretations by the Supreme Court. It has continually accommodated new groups and provided a framework for government, they explained.

The authors' reliance on inclusivity as the hallmark of the Indian experience carries a hidden message for India that there is no ground for complacency.

If India continues to dither in finding solutions to the struggles in Jammu and Kashmir, the north-eastern region, Telangana, and areas under the influence of Maoists across the country, then its past achievements on inclusion, as a strategy to ensure endurance, will increasingly appear irrelevant in the face of contemporary challenges.

This is not to suggest that endurance in itself is a desirable virtue for a political system. As the authors of this book argue, some constitutions will grow out of alignment with their context and cease to fit. Whether India has reached such a stage in its history is indeed debatable.

India's paradoxes

Understanding Contemporary India: Critical Perspectives aims to provide space for this debate. The book includes 13 essays on different dimensions of this debate, with a focussed introductory essay by the editors. According to the editors, the India that will emerge is as yet undecipherable since it will be the result of an ongoing process of conflicting economic, social, political, cultural and ideological forces, pressures and tendencies. There are, according to them, different understandings of what India is, what it will be, or should be.

In a lucidly written concluding chapter, editor Achin Vanaik elucidates 12 paradoxes that sum up the peculiarities of Indian society and politics. Of these, the last one deserves a special mention. Indian democracy, he says, is extraordinarily violent and authoritarian at the micro level so as to make a mockery of the notion of democratic life, existence and opportunities; yet, it is extremely difficult to institutionalise such authoritarianism at the macro level.

Not only was the Emergency a much milder form of national authoritarianism than most African, Latin American and Asian dictatorial variants, its very collapse indicated the great difficulties involved in setting up structures conducive to long-term authoritarian rule in India.

However, Vanaik cautions that the continuing threat of Hindutva forces and neoliberalism as economic doctrine, policy and practice demand and always secure a rightward and anti-democratic shift at the levels of politics and ideology. India's subordination to the U.S. imperial project in its foreign policy is an ample proof of this shift. Therefore, he says, the price for maintaining the single most precious fruit of India's history as an independent nation-state its democratic dignity is the exercise of utmost public vigilance.

It is a characteristic of this most diverse and complex country with its turbulent politics, its extremes, and its unexpected turns and shifts that nothing is ever quite as bad or as good as it might seem initially, the editors say in their introduction.

As they put it: This is source for both optimism and pessimism about the future, reminding us that India will be what we and coming generations make of it.